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April 7, 1995


The opinion of the court was delivered by: JOHN G. KOELTL

 John G. Koeltl, District Judge.

 After a nine day trial of these consolidated cases, a jury returned a verdict based on answers to special interrogatories finding for the plaintiff, Ramakrishna Rao, against defendants Anthony Japha, Dennis Newman, and Robert Weigand on the plaintiff's claim that their termination of his employment at the New York City Health and Hospital's Corporation ("HHC") violated his First Amendment rights. The jury awarded compensatory damages of $ 100,000 under 42 U.S.C. § 1983. It found defendant Paul Rozsypal not to be liable for any violation of the plaintiff's First Amendment rights and found that none of the defendants terminated the plaintiff's employment on account of his national origin. *fn1" The jury also found that the wrongful actions of the liable defendants were not taken pursuant to an official policy, custom, or practice of HHC and therefore found HHC not to be liable to the plaintiff. See Monell v. Dep't of Social Services, 436 U.S. 658, 56 L. Ed. 2d 611, 98 S. Ct. 2018 (1978).

 In addition to his § 1983 claims for violation of First and Fourteenth Amendment rights, the plaintiff pleaded claims for violations of Title VII of the Civil Rights Act of 1964 which were not presented to the jury, because this action was filed prior to the 1991 amendments to the Act. See Postema v. National League of Professional Baseball Clubs, 998 F.2d 60, 61-62 (2d Cir. 1993) (holding that 1991 Civil Rights Act amendments to Title VII providing for jury trials are not retroactive).

 There are presently four applications before the court regarding the judgment to be entered. The plaintiff seeks reinstatement to his position with HHC, or alternatively front pay, prejudgment interest on the damage award, and a letter stating that he was terminated from HHC in violation of his First Amendment rights. The defendants seek the entry of findings of fact and conclusions of law in their favor on the plaintiff's Title VII claims.

 At trial, all of the defendants admitted to having participated in the termination of the plaintiff's employment with HHC in March, 1987. The jury was asked to determine whether: 1) the individual defendants were motivated by Rao's national origin to terminate his employment, and 2) whether Rao had engaged in various forms of speech that the Court found to be protected by the First Amendment and whether such speech was a substantial or motivating factor in the defendants' termination decisions. The jury found that for defendants Japha, Newman, and Weigand the following instances of protected speech were substantial or motivating factors in their decisions to terminate Rao: (1) Rao's verbal complaints about the failure of a contractor, Joseph L. Muscarelle Inc., to comply with the terms of its contract for work to be done at the Cumberland Neighborhood Family Care Center in Brooklyn, and (2) Rao's December 15, 1986 memorandum to defendant Weigand about Muscarelle's alleged failings and about alleged extortionate threats made by a community group demanding money and jobs at the project. Thus, the jury's answers to the special interrogatories established that defendants Weigand, Japha, and Newman terminated Rao's employment in violation of 42 U.S.C. § 1983. *fn2"


 At argument on the applications, and subsequently in a submission to the Court, the plaintiff stated that, in view of the jury's finding that he was not terminated because of his national origin, he was withdrawing his Title VII claim. At trial, he conceded that the only arguable basis for Title VII liability in this case was that he was terminated due to his national origin, and he withdrew his other Title VII claims. The plaintiff contends that he may now withdraw his remaining Title VII claim, but the defendants have not agreed to allow withdrawal and have submitted brief proposed findings of fact and conclusions of law deciding the claim in their favor.

 The plaintiff may not unilaterally withdraw his claim after the close of the trial. See Wakefield v. Northern Telecom, Inc., 769 F.2d 109, 114-15 (2d Cir. 1985) (holding that district court erred in dismissing claim without prejudice, rather than with prejudice, where claim was withdrawn by the plaintiff at close of trial due to lack of evidence). Therefore, the Court makes the following findings of fact and conclusions of law with respect to the plaintiff's Title VII claim.

 On July 21, 1986, HHC hired Rao as a Director, Engineering and Facilities Services, Capital programs, on the recommendation of defendant Robert Weigand who was Senior Deputy and Chief Engineer, Capital Programs. During his tenure at HHC, Rao's superiors were defendants Weigand; Paul Rozsypal, Group Director, Construction Management, Capital Programs; Dennis Newman, Assistant Vice President and Chief Engineer, Capital Programs; and Anthony Japha, Senior Assistant Vice President, Capital Programs.

 Rao was initially assigned as Director of HHC's North District, which encompassed the Bronx and Upper Manhattan. In the North District, Rao had encountered significant difficulties with a subordinate, Gary Yates, whom Rao considered to be insubordinate. In December, 1986, defendants transferred Rao to a temporary assignment as the on-site project manager at the Cumberland Neighborhood Family Care Center in Brooklyn, which was undergoing extensive renovation in HHC's most expensive new construction project at that time. Rao authored a December 15, 1986 memo to defendant Weigand complaining about numerous aspects of the Cumberland project, including alleged deficiencies in the performance of Joseph L. Muscarelle, Inc., a contractor, and alleged extortion attempts by a community action group. Weigand was not pleased with the memo, alleging at trial that the reason for his dissatisfaction was that he was already aware of virtually everything reported in it.

 On December 23, 1986, Rao met with defendant Japha and they discussed some of Rao's concerns about his employment situation. Japha told Rao that if he could not get along with Weigand, he should find another job.

 On or about February 10, 1987, defendant Weigand informed Rao that his services were no longer required and offered him the option of resigning. Weigand had discussed the decision to terminate Rao with both Japha and Newman who concurred. On February 13, 1987, Rao was informed that he had been given an unsatisfactory performance evaluation. Rao received a copy of the evaluation on February 23, 1987.

 On February 13, 1987, Rao filed complaints with HHC's Equal Employment Office and the U.S. Equal Employment Opportunity Commission, charging discrimination in the terms and conditions of his employment on the bases of his age, race, color, national origin, religion, and creed.

 On or about March 6, 1987, Rao received a letter informing him that his employment with HHC would be terminated effective March 13, 1987.

 On March 13, 1987, Rao filed a supplemental charge of discrimination with the EEOC, alleging, among other things, that the decision to terminate his employment was discriminatory and constituted illegal retaliation for his having filed the first EEOC complaint.

 During trial, Rao withdrew all claims of discrimination and retaliation under Title VII except his claim that his employment was terminated because he is a native of India. The Court is bound by the jury's determination that no defendant terminated the plaintiff's employment because of a motivation to discriminate against him because he is a native of India. See Song v. Ives Lab., Inc., 957 F.2d 1041, 1048 (2d Cir. 1992) ("It is clear that a judge sitting at equity may not render a verdict which is inconsistent with that of a jury sitting at law on a claim involving the same essential elements"); Wade v. Orange County Sheriff's Office, 844 F.2d 951, 954 (2d Cir. 1988) (finding that when a jury determines a factual issue related to a civil rights claim, the court is precluded from reaching a contrary decision on that issue under Title VII); In re Lewis, 845 F.2d 624, 629 (6th Cir. 1988) ("One important reason that a judge is not to make findings that contravene a jury's verdict is that the verdict is res judicata with respect to the factual issues which would have necessitated jury resolution"). The Court, therefore, finds that none of the defendants terminated the plaintiff's employment because of a motivation to discriminate against him because of his national origin and dismisses the plaintiff's Title VII claim with prejudice.

 The foregoing constitutes the Court's findings of fact and conclusions of law pursuant to Fed. R. Civ. P. 52(a).


 The plaintiff seeks prejudgment interest on the $ 100,000 award of compensatory damages. Section 1983 contains no provision regarding prejudgment interest. The parties agree that when a federal statute is silent concerning the availability of prejudgment interest, a court may award prejudgment interest in accord with its equitable discretion. In Wickham Contracting Co., Inc. v. Local Union No. 3, Int'l Bhd. of Elec. Workers, 955 F.2d 831 (2d Cir.), cert. denied, 121 L. Ed. 2d 302, 113 S. Ct. 394 (1992), the Court of Appeals for the Second Circuit explained the factors to be applied in making a discretionary award of prejudgment interest:

The award should be a function of (i) the need to fully compensate the wronged party for actual damages suffered, (ii) considerations of fairness and the relative equities of the award, (iii) the remedial purpose of the statute involved, and/or (iv) such other general principles as are deemed relevant by the court.

 Wickham, 955 F.2d at 833-34 (citations omitted).

 In Frank v. Relin, 851 F. Supp. 87, 91 (W.D.N.Y. 1994), the court granted the plaintiff prejudgment interest on an award of back ...

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